Federal Court of Appeal narrows release of Senate-scandal documents

The government does not have to release parts of a memo about the Senate’s expense scandals in 2013 because it constituted legal advice for then-prime minister Stephen Harper, the Federal Court of Appeal says.

In a ruling dated April 24, a three-judge panel said the document from the Clerk of the Privy Council is subject to solicitor-client privilege because Privy Council Office lawyers helped write it even though the Clerk, the top federal bureaucrat, wasn’t a lawyer.

The ruling says some e-mails, letters and other details must be released, including the decision Mr. Harper made based on the advice he received in the July, 2013, memo. But in all, the appeals court reduced the amount of information that a Federal Court judge two years ago said had to come out.

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Large swaths of the ruling have been redacted because it deals with information that the judges agreed should not be released.

The commissioner’s office said it is still deciding whether to appeal.

The Privy Council Office noted in a statement that the court accepted most of the government’s arguments for keeping some parts of the record secret. Spokesman Stephane Shank said the office wouldn’t comment further given that the commissioner could appeal.

The ruling is the latest twist in a nearly four-year legal battle between the Prime Minister’s Office and the information commissioner stemming from an access-to-information request The Canadian Press filed in 2013 at the height of the Senate spending scandal. The request sought documents showing what the Prime Minister’s Office was thinking and doing about allegations that multiple senators had filed questionable claims for housing and travel expenses over many years.

Officials refused to release 27 of 28 pages deemed relevant to the request, including the July 10, 2013, memo sent to Mr. Harper as the Mounties were interviewing senators, political aides and other government officials.

The information commissioner took the Prime Minister’s Office to court in late 2015, after the Liberals were sworn in, believing officials “erred in fact and in law” when they declared every word on the 27 pages to be exempt from the Access to Information Act.

In the new ruling, the Federal Court of Appeal panel ruled that some parts of the documents were clearly covered by solicitor-client privilege or amounted to internal advice for politicians that could be withheld from public release under the transparency law. Most of the memo to Mr. Harper was covered by these exclusions, the appeal court ruled.

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Other parts, however, were “clearly factual and objective information” and not covered by solicitor-client privilege and should be made public, the ruling says. The judges ordered the release of the decision Mr. Harper took based on the memo because it was “past the stage of seeking and obtaining legal advice.”

Over all, the court said, it appears that the PCO made a serious effort to consider the intense public interest in the Senate-expenses affair when deciding what should and shouldn’t be made public.

“There is sufficient evidence that PCO considered all the relevant factors in exercising its discretion to withhold information, including the public interest in access to information and the principle of government transparency,” Justice Yves de Montigny wrote for the court.

“The decision of PCO to refuse disclosure was both transparent and intelligible.”

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